McDaniel v. Hines
| Decision Date | 14 March 1922 |
| Citation | 239 S.W. 471,292 Mo. 401 |
| Parties | A. J. McDANIEL and LUCY McDANIEL v. WALKER D. HINES, Director General of Railroads, Appellant |
| Court | Missouri Supreme Court |
Appeal from Newton Circuit Court. -- Hon. Chas. L. Henson, Judge.
Affirmed.
W. F Evans and Mann & Mann for appellant.
(1) The petition states no cause of action. (a) Sec. 4217, R. S 1919, the Missouri death statute, under which this action is brought, is entirely penal and in no degree compensatory. Grier v. Railroad, 228 S.W. 454; Midwest Bank v Davis, 233 S.W. 412; Lackey v. Rys., 231 S.W. 956; Miller v. Rys., 233 S.W. 1066. (b) No action can be maintained against the Director General of Railroads, or the United States Railroad Administration, under a state penal statute, such as the so called railroad death statute of Missouri, there being no provision for such suits made either by act of Congress, or the orders of the Director General, issued in pursuance of said act. On the contrary the orders of the Director General specifically deny individuals the right to sue the Director General of Railroads for a penalty imposed by state statute. Mo. Pac. Ry. Co. v. Ault, 256 U.S. 554. (2) The court erred in granting plaintiff a new trial. The demurrer to the evidence was properly sustained. (a) The deceased's contributory negligence was the proximate cause of her death and bars the right of the plaintiffs, her parents, to recover. The deceased, a girl of fourteen years and nine months of age, is presumed to have sufficient capacity and understanding to be sensible of the dangers incident to crossing defendant's mainline track where she knew trains were passing at all hours of the day and night, and to have sufficient understanding to avoid such dangers and to discover the approach of the train. Jackson v. Butler, 249 Mo. 370; L.R.A. 1917F, 70, note. (b) The testimony shows deceased possessed the average intelligence of one of her age, and her negligence in approaching the railroad track at right angles in broad day light with no obstructions to her view or hearing, and with the train at a point where by looking she could have seen it before reaching a place of danger upon the track, was the proximate cause of her death and defeats plaintiff's right of recovery. Payne v. Railroad, 136 Mo. 585; McGee v. Railroad, 214 Mo. 530; Graney v. Railroad, 157 Mo. 666; Walker v. Railroad, 193 Mo. 453; Spillane v. Railroad, 135 Mo. 414; Boesel v. Express Co., 260 Mo. 463; Battles v. Ry. Co., 178 Mo.App. 596; Green v. Railroad, 192 Mo. 131; Laun v. Railroad, 216 Mo. 563; Keele v. Railroad, 258 Mo. 62; Schmidt v. Railroad, 191 Mo. 215; Guyer v. Railroad, 174 Mo. 344; Kelsay v. Railroad, 129 Mo. 362; Farris v. Railroad, 167 Mo.App. 392; Vandeventer v. Railroad, 177 S.W. 834; McMiens v. Rys. Co., 274 Mo. 331; Dyrcz v. Railway, 238 Mo. 33.
Kelsey Norman and Horace Ruark for respondent.
(1) Appellant's contention, under point one, is based wholly upon the proviso to Order No. 50 issued by the Director General of Railroads October 28, 1918. Plaintiff's suit was at that time pending. (a) This order, like a statute, must be given a prospective and not a retrospective operation and will not be held to apply to a cause of action accrued under the Federal statutes and then pending but only to suits thereafter brought. State ex rel. v. Wright, 251 Mo. 344; Lythe v. Arkansas, 9 How. 314; Hutchins v. Low, 15 Wall. 94; Shipley v. Cowen, 23 Wall. 340; Murray v. Gibson, 15 How. 423; Heong v. United States, 112 U.S. 536; McEwen v. Den, 24 How, 243. (b) The order of the Director General No. 50 does not purport to operate upon pending suits but upon suits "hereafter brought in any court." (c) A proviso is construed strictly and takes no case out of, the enacting clause which does not fall fairly within its terms, where the enacting clause is general and the proviso is afterwards introduced. United States v. Dickson, 15 Pet. 141; State v. Ewing, 140 U.S. 148. (d) Where a proviso is inconsistent with or repugnant to the purview of the act the latter will be held to prevail. Gist v. Rackliffe, 224 Mo. 369; Brown v. Patterson, 224 Mo. 660. (2) All laws should receive a reasonable construction. General terms should be so limited in their application as not to lead to injustice, oppression or an absurd consequence. It will always therefore be presumed that the Legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter. United States v. Kirby, 7 Wall. 482; Stubbs v. Mulholland, 168 Mo. 73; State ex rel. v. Pike County, 144 Mo. 280; Verdin v. St. Louis, 131 Mo. 163; Heydenfeldt v. Gold Co., 93 U.S. 634; Lumber Co. v. Mo. Pac. Ry., 216 Mo. 658; State ex rel. v. Farmer, 271 Mo. 306; Johnson v. Ragan, 265 Mo. 420; State ex rel. v. Board of Curators, 268 Mo. 598. (3) "When the objectionable part of a statute is eliminated, if the balance is valid and capable of being carried out, and the court can conclude it would have been enacted if that portion which is illegal had been omitted, the remainder of the statute thus treated is good." Wilcox v. Gas Co., 212 U.S. 53. (4) The conduct of the deceased child is to be measured by that of one of her age, capacity, experience and the attending circumstances. The question is peculiarly one for the determination of a jury and only in exceptional cases for the court as a matter of law. Deschner v. Railroad, 200 Mo. 310; Jackson v. Butler, 249 Mo. 369; Campbell v. Railroad, 175 Mo. 161; Moeller v. United Rys., 242 Mo. 721; Lange v. Mo. Pac. Ry. Co., 208 Mo. 458; Holmes v. Railroad, 190 Mo. 105; Berger v. Railroad, 112 Mo. 238; O'Mellia v. Railroad, 115 Mo. 221; Saller v. Shoe Co., 130 Mo.App. 722; Marshall v. United Rys. Co., 184 S.W. 159; Shortridge v. Scarritt Estate, 145 Mo.App. 295; Obermeyer v. Chair Co., 120 Mo.App. 59; Dowling v. Allen & Co., 74 Mo. 14, 88 Mo. 298; Payne v. Railroad, 129 Mo. 405; White on Personal Injuries, sec. 314. (5) It is not sufficient to prevent a recovery, that the infant may have known the dangers of a railroad crossing, but the thoughtlessness, the lack of prudence and want of judgment of children of that age and experience must also be taken into consideration in resolving this question of fact. Deschner v. Railroad, 200 Mo. 310; Anderson v. Railroad, 81 Mo.App. 120; Plumley v. Birge, 124 Mass. 57. (6) The court cannot fix any certain age where an infant is to be charged with negligence as one sui juris. Moeller v. United Rys. Co., 242 Mo. 729; Marshall v. Railroad, 184 S.W. 159; Dowling v. Allen & Co., 74 Mo. 14, 88 Mo. 298; Obermeyer v. Chair Co., 120 Mo.App. 59; Campbell v. Railroad, 175 Mo. 161. (7) The running of the freight train, without signals so close behind the passenger train that the sound of the one was not distinguishable from the other was a confusing circumstance liable to throw the traveler off his guard and would make the question of contributory negligence, even though the traveler an adult, a question for the jury. Deschner v. Railroad, 200 Mo. 325; Moore v. Transit Co., 95 Mo.App. 729; McGee v. White, 66 F. 502; Union Traction Co. v. Hayworth, 115 N.E. 753; Railway v. Cox, 8 Ind.App. 29; Gray v. Penn. Ry. Co., 172 Pa. 383; Flannelly v. Railroad, 225 U.S. 601. (8) The deceased had a right to rely, to some extent, upon the statutory signals being given and while this alone will not excuse a failure to look and listen, it is a matter to be taken into consideration along with the other facts, in passing upon her contributory negligence. Jackson v. Railroad, 189 S.W. 381; Yonkers v. Railroad, 182 Mo.App. 568; Elliott v. Railroad, 105 Mo.App. 532; Kenny v. Railroad, 105 Mo. 270; Swigart v. Lusk, 192 S.W. 143; Moore v. Railroad, 171 Mo.App. 430; Woodward v. Railroad, 152 Mo.App. 408; Dunwoody v. Railroad, 136 Mo.App. 515. (9) The leaving of a space of two inches or more between the outside planking and the south rail of the main line was negligence upon defendant's part. R. S. 1919, sec. 9944; Ry. Co. v. Matthews, 164 S.W. 1092; Pittsburg Ry. v. Reed, 88 N.E. 1080.
I. Appeal from the Circuit Court of Newton County. In this case the plaintiffs' daughter, Nellie, was killed on August 24, 1918, by being struck at a railroad crossing about two hundred feet west of Belfast, a railroad flag station in said Newton County by the pilot of an engine of a freight train of the St. Louis & San Francisco Railway Company. The freight train was following close behind a passenger train. Both trains were going west on the main line. There was a switch track close to and south of the main track on the crossing and running some distance east. The child was going north when struck by the freight train. There was a berry shed about sixty feet long, located about one hundred sixty to two hundred feet east of the crossing and four or five feet south of the switch track. There were piles of walnut logs extending from near the berry shed to within about twenty feet of the crossing on the south of and within about four or five feet of the switch track. The switch track commenced to run in towards the main line at the crossing so that the north rail of the switch track was within about eighteen inches of the south rail of the main line on the crossing at the point where the accident happened. The plaintiffs' child had been sent for a can of coal oil and was going home walking north with the can in her hand when she was struck by the freight engine. The railroad was then in control and being operated by the Director General of Railroads.
The court sustained a demurrer to plaintiffs' evidence, but sustained plaintiffs' motion for new trial. Def...
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